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Accountability for U.S. Torture: Spain

At a Glance

Current Status

The universal jurisdiction case on U.S. torture (Court 5) is on appeal to the Spanish National Court. The universal jurisdiction case on the “Bush Six” for U.S. torture (Court 6) is on appeal to the Spanish Constitutional Court.

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Case Description

Spain Preliminary Investigation into U.S. Torture, Court 5

One hundred and fifty-five countries, including Spain and the United States, are party to the United Nations Convention Against Torture (CAT). Those countries have committed to investigating, prosecuting and punishing torturers. Spain is additionally obligated under the Geneva Conventions to investigate allegations of torture and war crimes.

In a decision related to the alleged torture and abuse of four former Guantánamo detainees Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna and Omar Deghayes, Judge Baltasar Garzón of Spain opened a preliminary investigation into what he termed “an authorized and systematic plan of torture” in US detention facilities in March 2009. This action was brought under the principle of universal jurisdiction.

The Center for Constitution Rights filed a motion to join the investigation as a party (acusación popular). In this role, CCR seeks to assist the court by providing analysis of various U.S. government reports, memoranda and investigations, providing factual information regarding the treatment of specific persons detained at Guantánamo. CCR also represents a former Guantánamo detainee in the proceedings.

CCR also assist the court by gathering and analyzing information about specific persons believed to have ordered, directed, conspired, aided and abetted, or otherwise participated directly, indirectly or through command responsibility in the torture and other serious mistreatment of persons detained at U.S. run detention facilities.

Investigation of the “Bush Six” (former U.S. government lawyers) into U.S. Torture, Court 6

One hundred and fifty-five countries, including Spain and the United States, are party to the United Nations Convention Against Torture (CAT). Those countries have committed to investigating, prosecuting and punishing torturers. Spain is additionally obligated under the Geneva Conventions to investigate allegations of torture and war crimes.

In a criminal complaint filed in March 2009 several US officials collectively known as the “Bush Six” were alleged to have participated in or aided and abetted the torture and abuse of person detained at U.S-run facilities. Defendants included: David Addington (former Counsel to, and Chief of Staff for, former Vice President Cheney); Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); Douglas Feith (former Under Secretary of Defense for Policy, Department of Defense (DOD)); Alberto R. Gonzales (former Counsel to former President George W. Bush, and former Attorney General of the United States); William J. Haynes (former General Counsel, DOD); and John Yoo, (former Deputy Assistant Attorney General, OLC, DOJ). This action was brought under the principle of universal jurisdiction. The responsibility for investigating this matter was referred to Judge Eloy Velesco.

The Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights (ECCHR) have worked together to provide the court and Judge Velasco with expert opinions, detailed analysis of various U.S. government reports, memoranda and investigations that support Spain’s jurisdiction over this investigation due to the utter failure of the United States government to conduct independent, thorough and impartial investigations into the torture program and the ongoing failure of the Obama administration to prosecute those responsible. Judge Velasco closed the case in April 2011, following a submission by the U.S. to Spain setting forth various actions the U.S. has purportedly taken in response to allegations of torture; CCR contested the U.S. submission, arguing that the U.S. has wholly failed to investigate and prosecute the “Bush Six” for their role in torture.

On September 25, 2012, CCR, ECCHR and 25 additional international law organizations and experts submitted an amicus brief to the Spanish Supreme Court, urging it to reopen the case based on errors of law and fact made by Judge Velasco, including his conclusion that the U.S. was investigating torture. The Supreme Court denied the appeal. On March 22, 2013 a petition for review was filed with the Spanish Constitutional Court, which remains pending.

Related Files

[US Torture Program] After appeal of lower court ruling that proceedings could move forward, Spain's National Court dismisses case for lack of jurisdiction

July 17, 2015

[US Torture Program] After appeal of lower court ruling that proceedings could move forward, Spain's National Court dismisses case for lack of jurisdiction

In closing the investigation, Judge José de la Mata applies reforms to the universal jurisdiction law introduced by the current Conservative government that impose new limits on the jurisdiction of Spanish courts, which require that cases involve suspects who are Spanish citizens or are living in Spain.

[US Torture Program] Judge Ruz issues a 31-page decision, finding that the investigation should proceed despite the amendment to Spain's domestic law

April 15, 2014

[US Torture Program] Judge Ruz issues a 31-page decision, finding that the investigation should proceed despite the amendment to Spain's domestic law

He bases his decision on Spain's international obligations as a signatory to the Convention Against Torture and the Geneva Conventions. He also renews his request to the United States to provide information about any investigations into the allegations in the U.S. The case was appealed.

Press Release

Related Files

[US Torture Program] Submission is filed on behalf of the Guantanamo torture plaintiffs, including CCR and ECCHR on the impact of the change to Spain’s law

March 21, 2014

[US Torture Program] Submission is filed on behalf of the Guantanamo torture plaintiffs, including CCR and ECCHR on the impact of the change to Spain’s law

Submission argues that the case should proceed in light of Spain's obligations under the Geneva Conventions and Convention Against Torture to punish and redress war crimes and torture. A decision is forthcoming.

Related Files

In the response, the groups assert that Spain is the proper jurisdiction for this case and demonstrates that the U.S. has not, and will not, investigate or prosecute the defendants or the punishable acts.

Press Release

Related Files

[US Torture Program] Dismissal of the appeal against Judge Garzon's order admitting Lahcen Ikassrien as a victim-witness in this case

April 2011

[US Torture Program] Dismissal of the appeal against Judge Garzon's order admitting Lahcen Ikassrien as a victim-witness in this case

Full Court of the Criminal Division of the National Court ruled on April 6, 2011 that the appeal should be dismissed. In light of Lahcen Ikassrien’s status as a Moroccan citizen and 13-year Spanish resident prior to 2001, and to ensure his presence, taking into account the seriousness of the crimes alleged in the complaint, Judge Ruz urges the Ministry of Security and the Ministry of Immigration and Emigration to issue Mr. Ikassrien temporary residency.

Related Files

Both groups advise the Court of recent factual developments in relation to the US torture program, defendants and actions by U.S. officials to interfere with these proceedings, as revealed through the recently released State Department cables.

CCR and ECCHR urge Judge Velasco to retain jurisdiction over the investigation due to the failure of the United States to conduct independent, thorough or impartial investigations into the torture program and the ongoing failure of the Obama administration to prosecute those responsible.

Related Files

[US Torture Program] Center for Constitution Rights files a motion to join the current investigation as a party (acusación popular)

April 27, 2010

[US Torture Program] Center for Constitution Rights files a motion to join the current investigation as a party (acusación popular)

In the filing, CCR seeks to assist the court by providing analysis of various U.S. government reports, memoranda and investigations, providing factual information regarding the treatment of specific persons detained at Guantánamo and other locations, and other aspects of the detention and interrogation program. CCR expressed its intent to assist in gathering and analyzing information about specific persons believed to have ordered, directed, conspired, aided and abetted, or other wise participated directly, indirectly or through command responsibility in the torture and other serious mistreatment of persons detained at U.S. run detention facilities.

Related Files

[Bush 6] Judge Velasco issues an order asking the parties to brief the effect of a new amendment to Spanish law

April 7, 2010

[Bush 6] Judge Velasco issues an order asking the parties to brief the effect of a new amendment to Spanish law

He directs the parties to show whether the should continue. These amendments to Spanish Organic Law of the Judicial Power (Ley Orgánica del Poder Judicial), Articles 23 (4)-(5) require that there be some connection to Spain for various international crimes in order for the court to have jurisdiction, “[n]otwithstanding whatever may be provided in other treaties and international conventions ratified by Spain."

January 26, 2010

[US Torture Program] Garzón issues a decision finding that Spain has jurisdiction over these cases and the complaints filed can proceed

January 26, 2010

[US Torture Program] Garzón issues a decision finding that Spain has jurisdiction over these cases and the complaints filed can proceed

Decision is based in part on the Spanish citizenship and Spanish residency of two of the victims, and also cites the previous relationship between the victims and Spain due to the Spanish request for their extradition. Garzón found, however, that in the even in the absence of these links between the victims and Spain, jurisdiction over the case exists under the revised law (Organic Law 1/09 (November 3, 2009) (specifically, provisions (a) and (h)) because the violations alleged constitute crimes against humanity and are covered by international treaties, including the Third and Forth Geneva Conventions, CAT and the International Covenant on Civil and Political Rights. The decision also takes note of the Letters Rogatory previously sent to the US and UK. Neither country responded, and in light of the change to the law, Judge Garzón found the answers to those questions moot. Notably, Judge Garzón found that the burden lies on the defendant to establish that jurisdiction is not proper, and not upon the victims to prove that it is in cases raising such claims: “it cannot be accepted that the court or the victim have to perform detective work to know where there is a procedure open and to try to establish a negative fact.” Judge Garzón concluded: “It seems that when it is a matter of alleged offenses of torture and mistreatment carried out systematically and intended for a purpose, namely breaking the will of the victim while at the same time depriving him of the most elemental rights by means of techniques prohibited in national and international law, there is no doubt that they are included in article 23.4.”

Related Files

[US Torture Program] CCR and ECCHR submit a dossier regarding role of former commander of Guantánamo, Geoffrey Miller

January 7, 2010

[US Torture Program] CCR and ECCHR submit a dossier regarding role of former commander of Guantánamo, Geoffrey Miller

The dossier collects and analyzes the evidence demonstrating his role in the torture of detainees at Guantánamo and in Iraq. Based on the information in the dossier, CCR and ECCHR request that a subpoena be issued for Miller to testify before Judge Ruz.

The letter, sent pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, asks the U.S. to confirm “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”

Related Files

[US Torture Program] Garzón issues Letters Rogatory to the United States and the United Kingdom

May 2009

[US Torture Program] Garzón issues Letters Rogatory to the United States and the United Kingdom

The letters inquire whether any investigations are currently pending into the individual cases of the four plaintiffs, as well as into the possibility that the victims could initiate criminal proceedings in the U.S. or the U.K. Neither country has responded.

Garzon seeks to investigate “an authorized and systematic plan of torture and ill-treatment on persons deprived of their freedom without any charge and without the basic rights of any detainee, set out and required by applicable international conventions,” in US detention facilities. Hamed Abderrahman Ahmed, Ikassrien Lahcen, Jamiel Abdul Latif Al Banna and Omar Deghayes, former Guantánamo detainees, had been the subject of a criminal case in Spain, but were subsequently acquitted because of the use of torture and other forms of serious abuse to which they had been subjected during their detention and interrogations at Guantánamo; Judge Garzón previously issued the extradition requests for Al Banna and Deghayes. The decision presents six pages of facts related to the torture and mistreatment the four men suffered including being held in cells made of chicken-wire in intense heat; being subjected to constant loud music, extreme temperatures and bright lights; constant interrogations without counsel; sexual assault; forced nakedness; threats of death; and severe beatings. The preliminary investigation includes “possible material and instigating perpetrators, necessary collaborators and accomplices.” Judge Garzón finds that the facts relate to violations under the Spanish Penal Code, the Third and Fourth Geneva Conventions, the Convention Against Torture (CAT), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Spanish Organic Law of the Judicial Power (Article 23.4).

Related Files

[Bush 6] Spain’s Attorney-General raised objections to the continuance of the case

April 16, 2009

[Bush 6] Spain’s Attorney-General raised objections to the continuance of the case

Subsequently, on 17 April 2009, the Public Office Prosecutor of the National Court filed a report requesting that the current complaint be discontinued and that on April 23, 2009, the responsibility for investigating this matter was referred to Judge Eloy Velasco.

March 28, 2009

[Bush 6] The case is initially admitted by the investigating judge of the Fifth Court, Judge Garzón

March 28, 2009

[Bush 6] The case is initially admitted by the investigating judge of the Fifth Court, Judge Garzón

March 17, 2009

[Bush 6] Spanish attorneys file criminal complaint against the “Bush Six”—high-level US officials who alleged to have participated or aided and abetted the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations

March 17, 2009

[Bush 6] Spanish attorneys file criminal complaint against the “Bush Six”—high-level US officials who alleged to have participated or aided and abetted the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations

Named defendants include: David Addington (former Counsel to, and Chief of Staff for, former Vice President Cheney); Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); Douglas Feith (former Under Secretary of Defense for Policy, Department of Defense (DOD)); Alberto R. Gonzales (former Counsel to former President George W. Bush, and former Attorney General of the United States); William J. Haynes (former General Counsel, DOD); and John Yoo, (former Deputy Assistant Attorney General, OLC, DOJ).They are alleged to have committed numerous violations of international law, including violations of the Geneva Conventions and Convention Against Torture.